In a second interlocutory decision of the British Columbia (BC) Supreme Court relating to an air passenger claim for delay, Spencer v. Transat A.T. Inc., 2022 BCSC 2256 (Spencer #2), the Court denied the plaintiff leave to amend the Notice of Civil Claim to plead the Montreal Convention on the basis of the expiration of the limitation period, thereby short-circuiting protracted litigation.
Spencer v. Transat A.T. Inc., a proposed class action, focused on the alleged marketing of commercial flights as “direct” flights, even though a technical stop was required in order to refuel. The flights were between Kelowna, BC and Cancun, Mexico. The plaintiff alleged that this practice was contrary to the BC Business Practices and Consumer Protection Act because the requirement of a technical stop was known in advance by the airline when it marketed the flights as direct. The plaintiff alleged that this resulted in delays because the flights arrived later than advertised, causing inconvenience to the plaintiff and her guests for her destination wedding in Cancun.
Earlier decision dismissing class action
In an earlier decision of the BC Supreme Court, Spencer v. Transat A.T. Inc. 2022 BCSC 145 (Spencer #1), Winteringham J. dismissed the class action for failure to satisfy the test for certification under s. 4(1) of the BC Class Proceedings Act. Specifically, the plaintiff had failed to plead the Convention for the Unification of Certain Rules of International Carriage by Air ( the Montreal Convention), which is incorporated into Canadian law by the Carriage by Air Act.
An extensive body of international case law from the highest courts provides that the Montreal Convention constitutes an exclusive code governing air carrier liability where geographically and temporally applicable. The subject flights between Canada and Mexico, both State Parties to the Montreal Convention, were governed by the international agreement and the claims based on delayed flights fell within the temporal scope of the Montreal Convention. This was notwithstanding that the underlying conduct complained of (i.e., the alleged deceptive marketing of the flights) predated the operation of the material flights.
Given the failure to plead the Montreal Convention, Winteringham J. in Spencer #1 dismissed the application for certification of the class action, with leave to the plaintiff to reapply to amend her pleadings and certification application.
Motion for leave to amend
The plaintiff’s ensuing motion seeking leave to amend gave rise to a pivotal second decision of Winteringham J. in Spencer #2.
On the plaintiff’s motion seeking leave to amend the Notice of Civil Claim, the defendants opposed the relief sought on the basis that any rights the plaintiff may have had under the Montreal Convention were extinguished under article 35(1) of the convention, which provides as follows:
The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
The issue before the Court was whether the filing of the Notice of Civil Claim – six months after the material flights – was sufficient to constitute an action brought by the plaintiff, such that her rights were not extinguished by article 35(1) notwithstanding the failure to plead the Montreal Convention.
Provincial law diverges on the right of a plaintiff to amend a claim to plead an alternative cause of action, premised on the facts as originally pleaded. In Ontario, such amendments will be allowed, whereas in BC they will be subject to judicial discretion, with the case law setting out the factors for the Court to take into account.
Winteringham J. did not consider the proposed amendment in this case through the lens of the BC Limitation Act, noting that the Act states expressly that it is inapplicable to limitation periods established by an international convention or treaty. In addition, the judge emphasized that it would be inconsistent with the underlying purpose of uniformity of the Montreal Convention to import notions of domestic laws and equitable jurisdiction into its interpretation.
Based on the foregoing, and highlighting that article 35(1) of the Montreal Convention provides for the extinguishment of the claim and not merely the right to seek remedy, the Court held that the filing of the Notice of Civil Claim without reference to the Montreal Convention did not satisfy the requirement to bring an action within two years. Therefore, any rights that the plaintiff may have held were extinguished and the proposed amendment failed to raise a cause of action supporting a claim.
This decision resolved a novel issue of law under the Montreal Convention. It provides a streamlined road map (or, perhaps more appropriately, flight plan) for air carriers and their counsel when plaintiffs fail to plead the Montreal Convention in their originating process and after the expiry of the two-year limitation period provided for at article 35(1) of the convention. While in this case the defendant air carrier made clear in its Response to Civil Claim that the Montreal Convention governed the plaintiff’s claims, it is interesting to note that the operative paragraphs of the Spencer #2 decision do not rely on this factual premise.
 2022 BCSC 2256.
 [SBC 2004] c 2.
 Spencer v. Transat A.T. Inc. 2022 BCSC 145 (“Spencer #1”).
 [RSBC 1996] c 50.
 [RSC, 1985, c C-26].
 Inter alia, Thibodeau v. Air Canada 2014 SCC 67 (Canada]); Stott v. Thomas Cook Tour Operators Ltd.  UKSC 15 (United Kingdom); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng 525 U.S. 155 (199) (United States).
 1100997 Ontario Ltd. v. North Elgin Centre 2016 ONCA 848.
 McIntosh v. Nilsson Bros, Inc. 2005 BCCA 297; Middelaer v. Berner 2012 BCSC 1472.
 [SBC 2012] c 13.
 Ibid at s. 3(1)(a).